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Legal Logjam Forming Against FCC Net Neutrality Rules

14 Apr, 2015 By: Erik Gruenwedel

The day (April 14) after the Federal Communications Commission published its open Internet order in the Federal Register, the American Cable Association and the Wireless Association (originally known as the Cellular Telephone Industries Association), filed separate litigation against the Federal Communications Commission's Feb. 26 decision to reclassify broadband ISPs as Title II telecommunications service providers.

The order prohibits ISPs from blocking any online content, throttling traffic, or creating exclusive “fast lanes” for services willing to pay. The ruling does not currently quash peering agreements, such as the ones Netflix inked with select ISPs to ensure smoother streaming video. Opponents of the order have 60 days after publication to contest the ruling.

USTelecom, a trade group representing telecommunications companies, filed suit in the U.S. Court of Appeals for the District of Columbia challenging the order on grounds it is arbitrary and capricious, and violates federal law.

Last month, Alamo Broadband filed a lawsuit against the FCC in the U.S. District Court of Appeals for the Fifth Circuit in New Orleans, La., alleging the agency order exceeded its authority. The United States Telecom Association separately filed suit in the U.S. District Court of Appeals for the District of Columbia seeking review of the FCC’s order.

USTelecom said it is not challenging the net neutrality objectives articulated by President Obama, but instead an “unjustifiable” shift back to common carrier regulation for ISPs after more than a decade of expanded broadband access and services for consumers under light-touch regulation. The group contends reclassifying Internet access as a public utility reverses established legal precedent at the FCC and upheld by the Supreme Court.

“[We believe] the FCC used the wrong approach to implementing net neutrality standards, which our industry supports and incorporates into everyday business practices,” USTelecom president Walter McCormick said in a statement.

The ACA, which represents small and medium-sized cable operator members, said the FCC ruling saddles its members — half of whom have 1,000 customers or less — with the burden of complying with a complicated new regulation.

“ACA members will have to deal with the myriad unforeseen consequences of the FCC's upheaval of the status quo,” CEO Matthew Polka said in a statement.

CTIA chairman Ron Smith said the wireless industry has always supported an open Internet. He said that by its ruling, the FCC opted to “resuscitate a command-and-control regulatory regime,” including a process where innovators must first seek permission from the FCC before rolling out new services.

“[The ruling] will harm mobile consumers and providers across the country, as well as our nation's wireless future,” Smith said in a statement.

The FCC, in response, stated it believes its ruling is on solid legal ground.

“We are confident the FCC's new open-Internet rules will be upheld by the courts, ensuring enforceable protections for consumers and innovators online," FCC spokesperson Kim Hart said in a statement.

About the Author: Erik Gruenwedel

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